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Commercial Disputes Weekly – Issue 15121 February 2023

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"Navigation will be safer if mariners observe and heed the ‘bright light’ of the crossing rule."FMG Hong Kong Shipping Limited, the demise charterers of FMG SYDNEY v The owners of the MSC APOLLO

Maritime – Collision
The Admiralty Court held that the container ship ‘APOLLO’ was responsible for its collision with the ‘SYDNEY’, a very large ore carrier, which occurred outside Tianjin, China in 2020. The SYDNEY was leaving the port and the APOLLO was approaching it when the collision occurred. The vessels were at risk of collision 12 minutes before the collision occurred and SYDNEY was on the starboard side of APOLLO. As a result, the Collision Regulations required that APOLLO took early and substantial action to keep well clear of SYDNEY. APOLLO failed to do this and instead made a number of turns to port and attempted to cross SYDNEY’s bow. In doing so it was in breach of the Collision Regulations. The Master of APOLLO had ignored what the radar said and his obligations under the Collision Regulations, as well as inappropriately used the VHF to try and agree a starboard to starboard crossing in conflict with the crossing rules. The court rejected criticisms of the SYDNEY’s lookout, speed and last-minute manoeuvre, and concluded that APOLLO was solely responsible for the damage caused by the collision.
FMG Hong Kong Shipping Limited, the demise charterers of FMG SYDNEY v The owners of the MSC APOLLO [2023] EWHC 328 (Admlty), 17 February 2023

Adjudication – Enforcement
In a dispute arising out of a construction subcontract, an adjudicator held that the main contractor, Henry Construction, owed the subcontractor, WRB (NI) Limited £120,655.35 plus interest, VAT and fees. Henry Construction made no payments and sought a stay of execution of the adjudication decision whilst it formulated a cross-claim of £754,495.72. Henry Construction accepted that a cross-claim was not a defence to enforcement but argued that WRB’s parlous financial standing (it was a dormant company) meant that it was highly probable that any monies paid now would not be repaid if Henry Construction was successful in its counterclaim. The court agreed that WRB would be unlikely to repay any judgment in Henry Construction’s favour but that the situation was entirely of its own making. Henry Construction chose to place a subcontract with a newly formed dormant company and resisted an argument that WRB Energy Limited was the true subcontractor. The risk complained of was an inevitable consequence of its contract. The stay was refused.
WRG (NI) Limited v Henry Construction Projects Limited [2023] EWHC 278 (TCC), 10 February 2023

Injunction – Evidence
Mr Soriano was in a dispute with the defendants that included allegations of libel, malicious falsehood and harassment. The claim was issued in the English courts, but the defendants were domiciled in the USA. The defendants applied to the US court for the production of documents by Mr Soriano’s US bank under legislation that allows evidence gathering to assist legal proceedings outside the USA. Mr Soriano’s application for an injunction to prevent the US application was unsuccessful. The English court said that the US application was not unconscionable simply because the principles of third-party disclosure differed between the US and English courts. As a matter of comity, the US court can be trusted to deal with any issues of substantive and procedural fairness in respect of evidence over which it has jurisdiction. Further, there was no unwarranted interference with efficient case management in the English proceedings and an increased costs burden was not a reason to prevent the defendants pursuing a legitimate means of obtaining evidence.
Soriano v Forensic News LLC and others [2023] EWHC] 262 (KB), 10 February 2023

Adjudication – Enforcement
A&V was subcontracted by J&BH to install plumbing at a university campus. A&V commenced adjudication alleging that J&BH were in breach of the subcontract, but the adjudicator held that A&V had failed to prove its claim and in fact was obliged to pay J&BH £82,956.88. A&V challenged J&BH’s application for enforcement. The judge rejected various specific challenges put forward by A&V. Further, it rejected a wider attack on the decision on the basis that it was so riddled with error and the adjudicator had spent less time on it than a previous adjudicator, such that it amounted to a denial of natural justice. Such an attack, if successful, would have wide implications. There was nothing to suggest any breach of natural justice or possibility of bias. The adjudicator did his best in a limited timescale when presented with a mass of material without a clear indication of how to proceed. He proceeded diligently and thoughtfully and although some things could have been done differently, it did not cross the threshold into a breach of natural justice.
J&B Hopkins Limited v A&V Building Solution Limited [2023] EWHC 301 (TCC), 15 February 2023

Should you wish to discuss any of these cases in further detail, please speak with a member of our London dispute resolution team below, or your regular contact at Watson Farley & Williams:

Andrew WardRebecca Williams
Ryland AshCharles Buss
Dev DesaiRobert Fidoe
Andrew HutcheonSarah Ellington
Mike Phillips
Theresa Mohammed

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